FCC Construcción S.A. v. Mr. Eugenio

At a glance

Parties

FCC Construcción S.A. (appellant; award debtor) v. Mr. Eugenio (respondent on appeal; award creditor)

Case no.

AAP B 366/2019; Auto No. 38/2019; Appeal No. 277/2018 (Section 13)

Court

Audiencia Provincial de Barcelona, Section 13 (Civil), on appeal from Juzgado de Primera Instancia No. 35 de Barcelona

Underlying award(s)

Award of the Vienna International Arbitral Centre (VIAC) of 31 March 2016, corrected by addendum of 30 May 2016

Forum and rules

Spanish enforcement proceedings under the Ley de Enjuiciamiento Civil; exequatur under the New York Convention

Treaty

New York Convention of 10 June 1958

Court

Juan Bautista Cremades Morant (rapporteur), M dels Angels Gomis Masque, Fernando Utrillas Carbonell, Maria del Pilar Ledesma Ibañez

Sector

Construction; shareholders' agreement

Outcome

Appeal dismissed (7 February 2019). FCC must bear the enforcement costs because it paid the award only after the enforcement claim had been filed.

Amount

Award: EUR 3,737,590 plus 4% annual interest from 3 July 2012, and arbitration costs of EUR 393,253.57, reduced to EUR 342,925.31 by addendum. Enforcement sought: EUR 4,080,515.31 plus interest, plus EUR 1,224,000 for interest and costs. Enforcement costs assessed at EUR 13,752.81. Costs of the appeal imposed on FCC.

The dispute

Mr. Eugenio, an engineer, obtained a VIAC award in Vienna dated 31 March 2016. The award ordered FCC Construcción S.A. to pay him sums due under a shareholders' agreement. The Superior Court of Justice of Catalonia granted exequatur under the New York Convention on 15 December 2016, and that decision was notified on 27 December 2016. Mr. Eugenio filed for enforcement in Barcelona on 9 February 2017. FCC paid the principal and interest in Austria the next day, 10 February 2017, and enforcement continued for the costs only. FCC opposed enforcement. It argued that it had paid in full within the period for voluntary compliance under Article 548 LEC, and that this period ran from notification of the decision refusing clarification of the exequatur. It also challenged the order to pay costs.

Key holdings

1. A foreign award becomes enforceable in Spain only after exequatur. But exequatur is a procedural precondition for enforcement, not a condition of the award's finality. Under Article 50 of Law 29/2015 and Article 518 LEC, time runs from the date the award became final. Second legal ground
2. The award was declared final and enforceable on 7 June 2016 and was due for payment from then. The unappealable exequatur decision of 15 December 2016 did not postpone that finality. At the latest, the 20-day period of Article 548 LEC ran from its notification on 27 December 2016. Third legal ground
3. FCC's request for clarification or rectification, rejected on 2 February 2017, did not suspend the period for voluntary compliance. Requests for clarification cannot be used to prolong time limits. Third legal ground
4. When the enforcement claim was filed, FCC still owed the sums claimed. The costs of enforcement had already been incurred and remained unpaid, so enforcement for them was proper. Under Articles 583.2 and 575.1 LEC, the debtor bears all costs incurred even if it pays when first required to. Fourth legal ground
5. The appeal was dismissed and the order of 24 July 2017 confirmed. FCC must pay the costs of the appeal because the case raised no serious doubts of fact or law (Articles 398.1 and 394.1 LEC). Operative part

Procedural history

1. 31 March 2016VIAC award in Vienna orders FCC to pay Mr. Eugenio EUR 3,737,590 plus interest and arbitration costs.
2. 30 May 2016An addendum corrects the award and reduces the costs to EUR 342,925.31.
3. 7 June 2016The President of the tribunal declares the award final and enforceable under Article 606 of the Austrian Code of Civil Procedure.
4. 15 December 2016The Superior Court of Justice of Catalonia grants exequatur under the New York Convention. The decision is notified on 27 December 2016.
5. 9 February 2017Mr. Eugenio files for enforcement in Barcelona. FCC pays the principal and interest the next day, 10 February 2017.
6. 2 May 2017The court issues the general enforcement order, and the costs are assessed at EUR 13,752.81. FCC files its opposition on 11 May 2017.
7. 24 July 2017Court of First Instance No. 35 of Barcelona dismisses FCC's opposition, with costs.
8. 7 February 2019The Audiencia Provincial de Barcelona dismisses FCC's appeal, with costs.

Tribunal, counsel and experts

Decided by

• Juan Bautista Cremades Morant Judge, Audiencia Provincial de Barcelona (rapporteur)
• M dels Angels Gomis Masque Judge, Audiencia Provincial de Barcelona
• Fernando Utrillas Carbonell Judge, Audiencia Provincial de Barcelona
• Maria del Pilar Ledesma Ibañez Judge, Audiencia Provincial de Barcelona

For the claimant

Mariano Jose Jimenez Renedo · Jose Luis Aguado Baños

For the respondent

Astrid Menacho Erxleben · Elisa Rodes Casas

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Keywords

• New York Convention
• enforcement
• exequatur
• VIAC
• Vienna International Arbitral Centre
• Spain
• costs of enforcement
• voluntary compliance period
• Article 548 LEC
• Article 583.2 LEC
• Law 29/2015 on international legal cooperation
• finality of award
• shareholders' agreement
• clarification request
• Austria

Summary generated with AI from the published documents — refer to the award for the authoritative text.